HURST vs. HYDE, EXECUTOR, 6 La. 449

- Mathews, J., delivered the opinion of the court. In this case the plaintiff claims damages from the estate of the deceased in consequence of the loss of a raft of ash logs, which was sold to him by Hyde, in the capacity of curator, and which was afterwards recovered from the purchaser at the suit of one Zobriska, as having the best right to the property. The judgment rendered against the defendant in the court below, is for the sum of eight hundred six dollars and sixty cents. From this he appealed.

This is, in truth, a judgment against the estate of the testator, or the Court of Probates is wholly without jurisdiction; and if a plea to the jurisdiction of that court had been made, it ought to have been sustained, considering the suit as one for damages occasioned by

an act of the defendant not legally done in relation to the administration of McDonough’s succession. The persons interested in that estate, are in equity bound to refund to the plaintiff the price really received for the property which appears to have been erroneously sold as belonging to it, but are not responsible for consequential damages or loss. The defendant ought, perhaps, to have P^eaded to the jurisdiction of the Court of Probates, although it would certainly have been

an act of extreme honesty, as such a plea is only supportable on the ground of bis personal liability. J Buchanan, for plaintiff and appellee.

Carleton and Lockett, contra, As the casé now stands before this court, we are unable to 7 discover any way in which justice maybe done between the parties, except by reversing the judgment of the Court of Probates, giving judgment against the defendant in his capacity of curator, to be paid out of the estate of the deceased, to the amount of the price actually received for the wood in question, and leaving to the plaintiff the right to pursue - Hyde in his individual capacity, in any court of ordinary and competent jurisdiction, for the recovery of such damages as are only consequential on the unadvised act of the defendant.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be avoided, reversed and annulled. And it is further ordered, adjudged and decreed, that the plaintiff and appellee do recover from the defendant and appellant the sum of three hundred and eighty-two dollars, to be paid by him as executor out of McDonough’s succession, with costs in the court below, and those of the appeal to be borne by the appellee; reserving to him his right to pursue the defendant in his individual capacity to recover damages, such as may have been sustained by the conduct of said defendant.